Property owners and occupiers owe two duties to invitees upon the property: a duty to maintain the property in a reasonably safe condition and a duty to warn of latent hazardous conditions that are or should be known to the owner or occupier but are not known by the invitee and could not be discovered through the invitee’s use of due care. The owner or occupier may not have a duty to warn of an open and obvious hazard, but Florida courts have held that the open and obvious nature of a hazard does not discharge the duty to maintain the property in a reasonably safe condition. The plaintiff must prove the owner or occupier had either actual or constructive notice of the hazard. Constructive notice may be shown by evidence that the hazard had been present for a long enough period of time that the owner or occupier would have known of its presence through the exercise of due care.
The Third District recently considered whether summary judgment was properly granted to the defendants when the plaintiff tripped and fell on a piece of re-bar in Grimes v. Family Dollar Stores of Florida, Inc. The plaintiff tripped and fell in the parking lot of a mall. The rows in the parking lot were separated by landscaped areas that had trees with re-bar tie-downs. The owner and lessee of the property hired a company to maintain these areas.
The plaintiff walked through a landscaped area to go to one of the stores. The plaintiff tripped on a re-bar that was not tied to any of the trees or shrubs, injuring her knee. She filed a negligence lawsuit against the store, the landowner, and the lessee, alleging failure to warn, failure to maintain the premises, and failure to correct a dangerous condition. The plaintiff alleged that the defendants allowed the re-bar to protrude as a concealed dangerous condition in a path used by invitees to the store.
The trial court granted summary judgment in favor of the store, the landowner, and the lessee. The trial court based its decision on Wolf v. Sam’s East, Inc., in which the plaintiff tripped over a tree root while cutting though a landscaped area in a parking lot. The district court found Wolf distinguishable, however, since the area where the plaintiff tripped in that case was not generally used for foot traffic. There was evidence in the present case, however, that the place where the plaintiff tripped had been used as a shortcut for a while. Specifically, there was evidence that the grass had been walked on enough to become just a dirt area. Additionally, a trash can had been placed in the area. The court noted the presence of the trash can raised a question of fact as to who was on sufficient notice that the area was used so heavily as a footpath that it needed a garbage can.
The court found that there was evidence that suggested the area where the plaintiff tripped “had become a well-trampled dirt footpath…” The district court found that there were triable issues of fact as to whether there was a dangerous condition, whether it was open and obvious, and whether the defendants had constructive notice of the dangerous condition as a result of the length of time it was present. The court noted that the defendants may have a duty to anticipate the harm if they allowed the area to be used by pedestrians, even if the hazard was open and obvious. The court also pointed out that the re-bar was an artificial condition, not a natural hazard as in Wolf.
The district court found there were genuine issues of material fact in this case, and summary judgment was therefore improper as to the landowner and the lessee. The court reversed judgment as to those two defendants, but it affirmed the summary judgment for the store, since the evidence showed that the owner and lessee had ownership, control, and maintenance of the parking lot.
The South Florida premises liability attorneys at Anidjar & Levine understand the duties of property owners and occupiers under Florida law. If you have been injured on someone else’s property, call us at (800) 747-3733 or submit an online “Contact Us” form.
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